The Canadian government – both on the federal and provincial level – is mandated to comply with a strict and complex set of data access laws that grant its citizens the right to request, but with necessary exemptions,information records that are deemed of public interest.
These public records include electronic correspondences such as public texts relating to government business and those that include individual personal information.
Here’s a guide on public text archiving requirements in Canadian federal and provincial governments.
Access to Information Act and Privacy Act
On the federal level, the Access to Information Act, and its accompanying Privacy Act requires federal bodies to respond to a public records request with in a maximum of 30 days. The exemptions to the Access to Information Act are limited and specific, and the decisions on the disclosure of government information (refusal of access) are reviewed by an independent body, the Office of the Privacy Commissioner of Canada.
The Access to Information Act defines “record” as any documentary material, regardless of medium and form. This includes mobile SMS, MMS, voice calls, email, Instant Messages (IMs) such as WhatsApp, video calls, social media posts, among others.
A. Exceptions
The head of a government institution, however, may refuse any record, including text messaging, that contain information that could implicate the following:
- Federal-provincial affairs, including text messages that relate to federal-provincial consultations.
- Strategy or tactics adopted or to be adopted by the government of Canada relating to the conduct of federal-provincial affairs.
- Conduct of international affairs or defense of Canada.
- Law enforcement and investigations
- National and Local Security
- Policing services of provinces or municipalities
- Investigations related to investigations, examinations, and audits.
- Public Sector Integrity Commissioner
- Secretariat of National Security and Intelligence Committee of Parliamentarians
- Safety of individuals
- Economic interests of certain government institutions
- Economic interests of Canada
- Third party information
- Operations of government
B. Offenses and Punishment
Section 67.1 (1) and (2) of the Access to Information Act details the following as actions that aim to deny a right of access to under the Act:
- Destroy, mutilate, or alter a record.
- Falsify a record or make a false record.
- Conceal a record.
- Direct, propose, counsel, or cause any person in any manner to do anything mentioned in any of the preceding violations.
Every person who is found guilty of these actions has committed:
- an indictable offense and is liable to imprisonment for a term not exceeding two years or to a fine not exceeding $10,000, or to both; or
- an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding six months or to a fine not exceeding $5,000, or to both.
Provincial Level – Freedom of Information and Protection of Privacy Acts
- Alberta
The Office of Information and Privacy Commissioner of Alberta stated in their Guidelines for Managing Emails that a record is information that is recorded in any format or medium, and can be “paper, photographs,…videotapes, audio recordings,…electronic messages and other media.”
The guideline also strongly advises agencies to capture and govern electronic correspondences with respect to their corporate records management policies and practices.
- British Columbia
The Record Management Guide for Instant and Text Messaging requires government bodies in British Columbia to “create and keep complete and accurate records sufficient to document their decision-making and work activities.” This requirement applies to all types of government records, including text messages.
Employees are also responsible for documenting their work by ensuring key records they create or receive are filed in an appropriate recordkeeping system.
- Manitoba
The Government Records Office of Manitoba classifies text messages, emails, and instant messages as transitory records. Government institutions can only delete business-related messages once they have been filed with the designated recordkeeping system.
- New Brunswick
The Right to Information and Protection of Privacy Act allow any person a right of access to records in custody or under the control of public bodies. The Act defines record as a record of information in any form, recorded and stored in any manner, on any storage medium or by any means.
- Newfoundland
The Government of Newfoundland and Labrador Email Guidelines state that emails and other information stored in a similar format, such as mobile SMS must be organized and managed to be easily retrievable in case of the access request.
- Northwest Territories
The Northwest Territories Access to Information and Protection of Privacy Act (ATIPP Act) grants its constituents the “…legal right to request access to information held by Northwest Territories public bodies..”These records include business correspondences in electronic format such as text messages.
- Nova Scotia
Nova Scotia’s Freedom of Information and Protection of Privacy Act (FOIPOP) supports the belief that every document, record or file held by the government, regardless of format, is subject to release to the general public.
- Nunavut
Nunavut’s ATIPP Act grants the right to access any information held by any public bodies in the province. This includes personal information about the requestor, as well as general information about the public body and their operations.
- Ontario
The Information and Privacy Commission of Ontario published a guideline for Instant Messaging and Personal Email accounts in 2016, which states that instant messages and emails sent from or received in personal accounts are public records, as per the section 2(1) of FIPPA.
- Prince Edward
Prince Edward’s FOIPOP Act defines record as “record of information in any form, including electronic form, but does not include a mechanism or system for generating, sending, receiving, storing or otherwise processing information.” The Archives and Records Act also states that the retention or disposition of electronic messages must be related to the information they contain or the purpose they serve.
- Quebec
Quebec’s Act Respecting Access To Documents Held By Public Bodies And The Protection Of Personal Information allows any citizen the right to access to “documents kept by a public body in the exercise of its duties” and applies whether the documents are recording in “writing or print, on sound tape or film, in computerized form, or otherwise.”
- Saskatchewan
Saskatchewan’s FIPPA provides guidelines stating that “every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a government institution.”A record also means a“record of information in any form and includes information that is written, photographed, recorded, or stored in any manner.”
- Yukon
The Yukon Access to Information and Protection of Privacy Act allows citizens to make a request for all records in custody or under the control of a public body, which can include correspondences recorded or stored by graphic, electronic, mechanical or other means.
With TeleMessage, federal and provincial public agencies and institutions in Canada can effectively comply with Access to Information Act, Privacy Act, and Freedom of Information and Protection of Privacy Acts. TeleMessage Mobile Archiver is an enterprise messaging app that effectively address compliance, regulatory, eDiscovery response requirements and which reduces risk across the Canadian government sector.
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